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Friday, June 24, 2011

An interesting issue of sentencing proceedure, victims' rights and the First Amendment is addressed today by a DC Circuit panel in US v. Brice, No. 10-3079 (DC Cir. June 24, 2011) (available here). Here is how the opinion starts:

Jaron Brice was a pimp who prostituted under-age girls, among others. He was convicted of various federal sexual abuse crimes, and he was sentenced to 25 years in prison. At his sentencing hearing, the District Court referred to sealed material witness proceedings concerning two victims of Brice’s activities. After sentencing, Brice asked the District Court to unseal the records of those two material witness proceedings. The District Court denied the request. Brice appeals that denial, claiming that the First Amendment guarantees a right of access to material witness proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980). We assume arguendo that the qualified First Amendment right of access to judicial proceedings extends to material witness proceedings. Even so, under our First Amendment access precedents, the public was not entitled to the records here, which contained “substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress” of the victims. United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2 (D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991). We affirm the orders of the District Court

Tuesday, June 07, 2011

Some family members of Ohio mass murderer victims want plea deal, not death penalty, for "closure"

As detailed in this new AP story, a high-profile mass murder case in Ohio has today prompted a high-profile plea for a plea deal from family members of the murder victims. The piece is headlined "Relatives of Cleveland victims seek plea deal in Sowell case," and here are excerpts:

Some relatives of 11 women allegedly killed by a man on trial are seeking a plea deal to spare the emotional ordeal of seeing the "horrors" play out in court, two attorneys representing families said today.

The attorneys said relatives of at least six victims have signed an appeal asking Cuyahoga County Prosecutor Bill Mason to strike a deal in the case against Anthony Sowell, 51. "They are concerned about the emotional trauma that the trial is going to cause on their families," Christine LaSalvia said.

"They are really just looking for closure. And I think, just as a way of avoiding reliving what happened and the horrors of what happened, they would prefer not to go through the trial." Her law partner, Jeffrey Friedman, said prosecutors should consider the feelings of family members when deciding whether to strike a last-minute deal. "The victims' families' feelings should be taken into consideration," he said.

Mason said Friday he was determined to get the death penalty. A plea deal likely would mean sparing Sowell's life in return for a guilty plea.

Friedman said a life sentence without parole would be similar to a conviction, death sentence and Sowell dying in prison awaiting the outcome of many years of appeals. Mason's office didn't immediately respond to a request for renewed comment today....

The families' appeal for a plea deal was first reported by WEWS-TV, which said the signed petitions would be delivered to Mason's office. LaSalvia said the number of signatures and delivery schedule were "a work in progress."

Jury selection entered the second day today for Sowell, who has pleaded not guilty. The trial is expected to last several weeks. Prosecutors say Sowell lured women from his inner-city Cleveland neighborhood into his home with the promise of alcohol or drugs, then killed them. The women disappeared one by one, starting in October 2007. The last one vanished in September 2009.

Sunday, June 05, 2011

House arrest(!?!?!) for wealthy repeat dangerous driver who killed two in hit-and-run

A helpful reader forwarded to me this remarkable (and troubling?) sentencing story from the Chicago Tribue, which is headlined "LeVin gets house arrest after undisclosed settlement; Illinois man will pay undisclosed settlement, serve two years house arrest for deadly Porsche hit-and-run case." Here are the remarkable details:

The scion of a wealthy Chicago-area family pleaded guilty in a South Florida court Friday to killing two British businessmen with his Porsche but avoided prison after agreeing to pay an undisclosed sum to the widows. Ryan LeVin, 36, will spend two years under house arrest in his parents' oceanside condominium....

The businessmen's widows supported the sentence, and their attorneys collected checks from LeVin immediately after Friday morning's hearing. LeVin spoke only at the judge's prodding and offered no apology during the proceeding, where he pleaded guilty to leaving the scene of a fatal crash and two counts of vehicular homicide. "The need for restitution does outweigh the need for prison," Broward Circuit Judge Barbara McCarthy said.

LeVin admitted to being behind the wheel of his $120,000 Porsche 911 Turbo when it jumped a sidewalk and killed Craig Elford, 39, and Kenneth Watkinson, 48, as they were walking to their beachside hotel Feb. 13, 2009. LeVin initially denied driving the speeding car and pinned the blame on a friend.

Given that LeVin's sentencing guidelines called for up to 45 years behind bars, some legal experts say the case seems to be an unsettling example of checkbook justice. "It is an unbelievably light sentence," said Michael Seigel, a University of Florida law professor and former federal prosecutor. "It is very disturbing."...

At the time of the crash, LeVin was on probation in Illinois for a 2006 case in which he had driven into a Chicago police officer and instigated a chase on the Kennedy Expressway. Court records show LeVin has more than 50 traffic violations and a long history of drug abuse.

Illinois officials will work with Florida authorities to return LeVin to his home state, where he faces a parole violation stemming from the 2006 incident, an Illinois corrections spokeswoman said. Illinois will seek to have his parole revoked and sent back to prison.

Rather than agree to a deal with Florida prosecutors, who wanted him to serve 10 years in prison, LeVin took an open plea that placed his fate in the judge's hands. His lawyer argued that the need for LeVin to pay restitution to the men's widows and children outweighed the need for LeVin to serve prison time.

The payout settles a civil suit filed by the men's families shortly after their deaths. "The wives and children of the deceased were significantly and permanently impacted by this incident, and they have indicated … that there exists a great necessity for restitution which the defendant can, and will, make, if permitted a sentence devoid of incarceration," LeVin's defense attorney David Bogenschutz wrote in court documents.

Bogenschutz, who has requested that the Porsche be returned to LeVin, denied his client had purchased his freedom. "I think he hardly bought his way out of this," Bogenschutz said after the court hearing. "We have two victims who have an absolute say in what should happen in their case. All the judge did was follow the law."

By comparison, a South Florida driver who pleaded guilty to a similar hit-and-run crash with one fatality was sentenced Friday to nine years in prison and ordered to pay $5,000 in restitution.

Broward County Public Defender Howard Finkelstein called it another case of a privileged defendant receiving leniency from the justice system, something rarely afforded a common street criminal. "It is an outrage, and there should not be a single person in our community that is not offended by the fact that it is clear you can buy justice in Broward County," Finkelstein said. "Our clients in similar situations, in every case, go to prison for substantial periods of time. "If it is appropriate that you not go to prison when you have money, it should also be appropriate that you not go to prison when you have no money."...

LeVin's silver-spoon existence will hardly be cramped during his two years of house arrest, when he is confined to one of his parents' two $600,000 seaside condos. He can exercise in the building's gym, attend church and does not have to wear an electronic monitor to ensure his whereabouts. The house arrest will be followed by 10 years of probation. He is prohibited from driving.

In supporting the sentence, both widows wrote letters to the judge describing the financial hardships they've suffered since losing their husbands, who were the sole earners in their families. Watson left behind three children, and Elford had two daughters.

The widows agreed to LeVin's staying out of prison with certain conditions, including immediate payment to settle a civil wrongful-death lawsuit they had filed against him. "We have been living in uncertainty and financial need," Kirsty Watkinson wrote. "We need closure so we can start to move on with our lives."

LeVin initially declined to speak in court, but the judge asked him to spit out his chewing gum, look at the photographs of the men's mangled bodies and make a statement. Clearly nervous, his face red and glistening with sweat, LeVin said he was ashamed and tortured. But he did not say he was sorry. "There's not a day that goes by that I don't think about this," he said. "I feel complete shame and compassion for the victims. … My heart goes out to them. I would just like to say it's a nightmare."

Bogenschutz said after Friday's hearing that his client has learned his lesson and knows he could wind up in prison if he violates the terms of his house arrest or probation. "I think he's grown up a lot," Bogenschutz said. "He understands now how he has to stay out of trouble. I think this time around was a real eye-opener."

There are so many interesting elements to this story I could (and just may) focus my entire sentencing class this Fall on whether and why we should be troubled by how this case resulted in a seemingly (too) lenient non-prison sentence.

Saturday, May 28, 2011

As reported in this article from The Oregonian, headlined "Oregon Supreme Court: Victims have right to see sentencing; Beaverton man must be resentenced," the top court in the Beaver state yesterday handed down a very interesting sentencing procedure decision. Here is the start of the press report:

The Oregon Supreme Court said today that a crime victim’s right to be present at court hearings is so crucial that the sentence of a Beaverton defendant must be thrown out and a judge must resentence him so his victim can be present.

The ruling offers a stern reminder to judges, prosecutors and defense attorneys that they can’t resolve criminal cases while victims are left in the dark — if victims have told prosecutors they want to be kept up to date on the process. The ruling affects victims of all types of crime — including rapes, assaults, burglaries, car prowls and identity thefts.

“It is a significant victory for victims of crime here in Oregon to make sure their voices are heard,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland and a clinical professor at Lewis & Clark Law School. Garvin said the decision also is gaining national attention because the justices clearly stated what should happen once the victim’s right has been violated.

The right to be told of crucial criminal proceedings — and to speak, if victims wish — was guaranteed by a 1999 voter-approved amendment to the Oregon Constitution. Voters clarified a remedy if those rights are violated in 2008, and lawmakers wrote that into state statute in 2009. The high court’s ruling is its first on this issue.

This notable ruling is available at this link, and here is key passage from the Court's discussion of the victim's right to the remedy of resentencing after her rights were not respected in the first sentencing of the defendant:

The principles outlined in [US Supreme Court case] DiFrancesco resolve this case. The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy. The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense." Id. at 129 (internal quotation marks and citation omitted). However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case. The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause. "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.

The victim was entitled to a remedy by due course of law under [the Oregon Constitution's] Article I, section 42(3)(a). Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause. Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533. The trial court erred in not granting the victim the relief that she sought.

The death penalty in Ohio is more than just a form of punishment -- it's a tool prosecutors rely on to get information, avoid lengthy and costly trials and to provide quick justice to families in pain. In contrast, pursuing a death-penalty case can mean decades before an execution date even is set....

Brent Yager, prosecutor in Marion County, said he believes he has a duty to seek the death penalty if the crime fits the requirements. But circumstances can change, he conceded. Sometimes, the threat of death is indeed a bargaining chip, a means to a conviction. Other times, more information simply comes to light. "As you get closer to trial, a lot can happen," he said. "You learn more about the case, you learn more about the defendant and, probably most importantly, you get to know the victim's family and you learn their wishes."

Sometimes, cost is a factor for poor, rural counties. Yager said he understands that but wishes it wasn't so. "Cost should carry the least amount of weight when choosing whether to seek a death sentence," he said. "And, in my mind, the wishes of the family should be given the most."

Citing the cost and racial imbalance, two Democratic state lawmakers want to abolish the death penalty in Ohio. Reps. Ted Celeste, of Grandview Heights, and Nickie Antonio, of Lakewood in the Cleveland area, have introduced the legislation. It likely is going nowhere in the Republican-dominated House. Still, prosecutors worry about losing the option...

Defense attorneys counter that prosecutorial leverage is no justification for the death penalty. "If we look at the death penalty as something there to extract guilty pleas more readily, I think that's a hell of a bad reason to have the death penalty," said Marc Triplett.

Iranian judiciary postpones planned "eye for eye" punishment

As detailed in this new Time piece, the "Iran's judiciary has postponed the blinding of a man as punishment for throwing acid in the face of a young woman in 2004, after she rejected his offer of marriage." Here is more on this proposed and now postponed form of retributive justice:

The delay came in the face of mounting outcry both inside Iran and in the West over the sentencing, which is permissible under qesas, a principle of Islamic law allowing victims analogous retribution for violent crimes.

The case has stirred passionate interest in Iran since 2004, when Majid Movahedi, a university student, accosted Ameneh Bahrami on a Tehran street and tossed a red bucket of sulfuric acid in her face. Bahrami, an attractive young engineer, had repeatedly spurned Movahedi's proposals and reported his harassment to the police. She was blinded and severely disfigured in the attack, and has spent the intervening years between Iran and Spain undergoing numerous unsuccessful operations to reconstruct her face and repair her sight.

Much of the public outcry in Iranian media, news websites, and blogs, surrounds the Iranian legal system, which produces such verdicts by practising an 'eye for an eye' approach to justice based on seventh century Islamic jurisprudence. These principles effectively offer victims of violent crime two legal choices, forgiveness or qesas, analogous retribution....

Speaking on the interactive television program Saturday, Bahrami said she favored a more modern course, suing for damages. "I want him to be punished foremost. But if there are human rights considerations, then I'll accept two million Euros and his life imprisonment," she said....

Bahrami, who was scheduled to herself administer the blinding drops to an anaesthetized Movahedi, learned of the delay outside the Judiciary Hospital in Tehran. Human rights groups and Western governments pleaded with Iranian authorities last week to call off the punishment. Iran's government usually responds to such foreign pressure by lashing out rather than backing off, but Bahrami's case poses a unique dilemma: unlike many human rights cases which excite opinion primarily in the West, it has resonated deeply throughout Iranian society; the attention inside Iran raises the prospect of a public backlash at a time when the regime is deeply divided by political infighting. "There's no doubt public opinion inside Iran has been stirred up," says Amini. "There's been a huge outpouring of sympathy for both of them, and this puts pressure on the government."

Thursday, May 12, 2011

California DA files suit hoping to undo controversial clemency grant

As detailed in this local piece, headlined "D.A. seeks to overturn reduced sentence of Esteban Nuñez in fatal stabbing," a county prosecutor is trying to break new lega ground by suing over a controversial clemency grant. Here are the details:

The San Diego County district attorney has filed a civil suit aimed at overturning former Gov. Arnold Schwarzenegger’s last-minute reduction of the prison sentence of the son of former Assembly Speaker Fabian Nuñez in the slaying of a college student.

On his last day in office, the governor reduced the sentence of Esteban Nuñez from 16 years to seven years. The decision was made without consulting with prosecutors in the case -- angering Dist. Atty. Bonnie Dumanis and the family of the victim, Luis Santos.

In the civil suit, announced Wednesday, Dumanis argues that Schwarzenegger had a legal obligation to notify prosecutors and the families of the victims. Santos was killed in a late-night street brawl outside San Diego State. Nuñez pleaded guilty in 2010 to voluntary manslaughter and assault with a deadly weapon.

The suit is considered the first of its kind, Dumanis said.... The lawsuit names the governor, Nuñez, the director of the state Department of Corrections and Rehabilitation and the warden of Mule Creek State Prison, where Nuñez is serving his time.

Dumanis said Marsy’s Law, meant to protect the rights of crime victims, requires a governor to notify prosecutors and family members. The civil suit could face a difficult legal precedent: that the right of governors to grant pardons and sentence reductions has been considered unlimited and not subject to review.

The governor, Dumanis said, is given that power to help correct miscarriages of justice. “Instead, this last-minute commutation made without all the facts or input from the parties only fueled the public mistrust of government and greatly diminished justice,” Dumanis said.

Though this novel lawsuit is seeking to undo a clemency decision that helped a criminal defendant, I suspect some defendants and their attorneys might like to see a ruling here that courts have authority to review and second-guess executive clemency decisions. After all, the vast majority of such executive decisions involve the denial of clemency; I am sure defendants and their attorneys who believe clemency was justified in certain cases would welcome any means or opportunity to challenge clemency denials in court.

Thursday, May 05, 2011

"The Criminal Class Action"

Over the past ten years, in a variety of high-profile corporate scandals, prosecutors have sought billions of dollars in restitution for crimes ranging from environmental dumping and consumer scams to financial fraud. In what we call “criminal class action” settlements, prosecutors distribute that money to groups of victims as in a civil class action while continuing to pursue the traditional criminal justice goals of retribution and deterrence.

Unlike civil class actions, however, the emerging criminal class action lacks critical safeguards for victims entitled to compensation. While prosecutors are encouraged, and even required by statute, to seek victim restitution, they lack adequate rules requiring them to (1) coordinate with other civil lawsuits that seek the same relief for victims, (2) hear victims’ claims, (3) identify conflicts between different parties, and (4) divide the award among victims.

We argue that prosecutors may continue to play a limited role in compensating victims for widespread harm. However, when prosecutors compensate multiple victims in a criminal class action, prosecutors should adopt rules similar to those that exist in private litigation to ensure that the victims receive fair and efficient compensation. We propose four solutions to give victims more voice in their own redress while preserving prosecutorial discretion: (1) that prosecutors and courts coordinate overlapping settlements before a single federal judge, (2) that prosecutors involve representative stakeholders in settlement discussions through a mediation-like process, (3) that courts subject prosecutors’ distribution plans to independent review to police potential conflicts of interest, and (4) that prosecutors adopt the distribution guidelines the American Law Institute developed for large-scale civil litigation to balance victims’ competing interests.

Saturday, April 30, 2011

"Co-Victims Against the Death Penalty"

The title of this post is the headline of this new editorial in the New York Times. Here are excerpts:

As the country has increasingly turned against capital punishment as barbaric and horrifyingly prone to legal abuses, defenders are pointing to the emotional needs of the families of murder victims — “co-victims” to those who study crime — as justification. Many family members, however, have said they want no part of that.

When New Jersey abolished the death penalty in 2007 and New Mexico did in 2009, each did so with the support of co-victims. In Connecticut, the Legislature’s joint Judiciary Committee has now approved a bill that would repeal that state’s death penalty, again with the support of victims’ families.

The family members say that rather than providing emotional closure, the long appeals process in death penalty cases is actually prolonging their suffering. They also say it wastes money and unjustifiably elevates some murders above others in importance. In an open letter to the Connecticut Legislature, relatives of murder victims — 76 parents, children and others — wrote that “the death penalty, rather than preventing violence, only perpetuates it and inflicts further pain on survivors.”...

We do not minimize the suffering of family members, wherever they stand on the issue. But the facts are undeniable. The death penalty does not deter crime and the long history of legal abuses is well documented. Connecticut’s full Legislature should pass the repeal bill and Gov. Dannel Malloy should sign it into law.

Wednesday, April 20, 2011

I have now had a chance to read closely yesterday's very important and very throughtful DC Circuit child porn restitution opinion in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here). The initial comments to my first post on the case spotlight how many dynamic (and circuit splitting) issues are addressed in the ruling, and I could (and might) do a series of posts on the many legal and policy issues implicated by this decision.

But there is one especially notable paragraph from the DC Circuit panel in its remand ruling that I want to spotlight and concerning which I wish to encourage collective rumination. Here is the paragraph:

On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount. Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution. The burden is on the government to prove the amount of Amy’s losses Monzel caused. We expect the government will do more this time around to aid the district court. We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

This paragraph is fascinating because it (1) spotlights why these child porn restitution cases are so hard (the case records have "relatively little ... to guide [court] decisionmaking"), and (2) stresses the prosecution's ultimate responsibilities and burdens here (the government must "submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image" and/or "suggest a formula for determining the proper amount of restitution" in order "to prove the amount of Amy’s losses Monzel caused"), and (3) obliges the district court to come up with some sound formula for sorting all this out while aslo giving it no assistance (the circuit judges here "express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused").

As the question in the title of this post hints, I am not confident that the district court in this case (or common-law courts in general) are going to be able to develop and apply "some principled method" for determining how much harm one particular downloader of one image of a widely-distributed kiddie porn picture proximately caused to the child abused in that picture. I have been thinking about this issue for some time, and I am yet to figure out what principled method exists to link proximately the harm resulting from one particular instance of downloading/possessing this illegal image, especially given that the victim is unlikely even to become aware of that particular instance of downloading/possessing unless and until the downloader is criminally prosecuted and the government gives notice to the victim.

I certainly believe Congress could (and really should ASAP) develop and enact a rational and sound legislative formula for awards of restitution in kiddie porn downloading cases like this one. But I cannot figure out just how courtscan and should develop a "principled method" of appropriately linking one particular act of illegal image possession and the resulting proximate harm to the victim in the image.

Perhaps readers have suggestions (including SC and Bill Otis and other frequent commentors who often stress victim interests); I am very eager to hear and discuss principled proposals. And I suspect the district court in this case and others facing this issue could benefit from some collective brainstorming.

Thursday, April 14, 2011

"Reverberations of the Victim's 'Voice': Victim Impact Statements and the Cultural Project of Punishment"

The title of this post is the title of this new article by Erin Leigh Sheley, which is now available via SSRN. Here is the abstract:

This article will argue that the current debate on the victim’s participation in the criminal sentencing process ignores how the complexity of a victim narrative effectively conveys the social experience of harm, without which the criminal justice system loses its legitimacy as a penal authority. In other words, we cannot only consider "the victim," "the defendant," and "the state" as three separate entities vying for narrative control over accounts of harm in determining punishment.

Rather, the stories of the victims and defendants already circulate through society outside of the courtroom and the function of "the state" in the trial context is to vindicate the interests of this society. Notions about criminal "harm" enter the culture through the experiences of individuals, as well as through political rhetoric and media representations, and, once there, shape social norms about the assignment of blame. Therefore, if the sentencing process cannot accommodate the stories of actual harm to individual victims it runs the risk of either coming to be viewed as illegitimate to a society guided by these norms or allowing free reign for generic representations of criminal harm produced by political and media actors to take the place of individuated victim accounts in the mind of a fact-finder.

Saturday, April 09, 2011

"Not In My Name: An Investigation of Victims’ Family Clemency Movements and Court"

The title of this post is the title of this interesting study spotlighted here by the Death Penalty Information Center. Here is the abstract:

Purpose: The goals of this project are 1) to document the patterns of opposition to the death penalty promoted by victims’ families following the ascendency of the retribution and closure arguments in support of capital punishment, and 2) to assess the scope and primacy of newspaper coverage of death penalty cases with anti-capital punishment covictims.

Methods: Content analysis of nationwide newspaper reports on capital offense trials from 1992-2009 is used to assess patterns of victim resistance to the death penalty over time, the reasons given for support or resistance to the death penalty, and the scope and primacy of the newspaper coverage of the capital case.

Results: The analysis reveals a significant increase in co-victim clemency movements across the study time period. Further, articles representing pro-death penalty covictims received both significantly higher primacy of media coverage in section and page number and word count than did their anti-death penalty counterparts. Lastly, a qualitative assessment of covictims' statements reveals several reasons for co-victim support or resistance to the death penalty.

Conclusions: Co-victim opposition to the death penalty in reaction to the ascendancy of retribution and closure justifications for capital punishment must be integrated into ongoing debates about the death penalty.

Saturday, March 26, 2011

The biggest development in sentencing jurisprudence this past week was the Fifth Circuit's fascinating (and suspect?) ruling that no proximate causation showing is needed to support a restitution order in the child pornography downloading case known as In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here). Consequently, I am pleased to see from this new AP article, headlined "Legal experts: Ruling benefits child porn victims," that the traditional media is taking note of the Fifth Circuit's decision (which I first discussed here).

Here are excerpts from the lengthy and effective AP piece:

Victims of child pornography around the country could have an easier time getting restitution from those convicted of possessing such images, according to a federal appeals court ruling this week in a Texas case. But legal experts say the issue now may have to be decided by the U.S. Supreme Court because courts throughout the United States are split on how to award such compensation.

The 5th U.S. Circuit Court of Appeals on Tuesday ruled that federal restitution law doesn't generally require victims to specifically detail how an individual defendant has harmed them in order to receive restitution. Other national appeals court rulings, including in Georgia and Montana, have upheld restitution awards against individuals convicted of possessing child pornography. But those courts interpreted federal law to require that victims show a more direct connection between what a defendant did and the harm victims suffered.

"It's a big deal," Jeff Bellin, a law professor at Southern Methodist University in Dallas, said of the 5th Circuit's ruling. "This is clearly the most significant victory that proponents of this type of interpretation (of restitution law) have had in the courts so far."... The 5th Circuit's decision reverses a previous decision by a different panel of the same appeals court that had ruled against Amy, who is now in her early 20s.

Stanley Schneider, Paroline's attorney, said he planned to appeal the ruling to the full appeals court and if needed to the U.S. Supreme Court. "If a person is selling pornography ... or distributing the image, that is (one) question," he said. "But if someone is sitting and doing nothing more than looking at images, possessing them, there has to be a causal connection" for the harm they have allegedly caused a victim. Schneider said Amy did not know beforehand that Paroline had seen images of her.

[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them. "It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said.

Cassell said about a third of the $3.4 million Amy is asking for, which is paying for lifetime counseling costs and lost income, has already been recovered from other claims around the country. The U.S. Attorney's Office for the Eastern District of Texas, which prosecuted Paroline and opposed Amy's appeal, declined to comment.

Under the law, victims of child pornography can be awarded restitution. But federal judges around the country have had varied interpretations of the restitution statute, with some awarding large amounts, others nominal amounts and others denying it altogether. "Do I think it resolves the issue? As an advocate, I hope it resolves it. But it will eventually make its way to the Supreme Court," said Meg Garvin, executive director of the National Crime Victim Law Institute, located at Lewis & Clark College's School of Law in Portland, Ore.

Wednesday, March 23, 2011

Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA

As Paul Cassell details in this post at The Volokh Conspiracy, on Tuesday "the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory [by accepting Paul's] arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded. As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime."

As Paul further explains, the Fifth Circuit's ruling in In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here), if "followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive." But, as noted in this prior post, the Eleventh Circuit in another case a few months ago, US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), decided there was a proximate cause limitation on whether and when a victim can obtain restitution in these sorts of child porn downloading cases. (Notably, McDaniel cites a prior ruling in the Amy case, but this new Amy Unknown ruling does not mention McDaniel.) It is not clear that the conclusions reached Amy Unknown will carry the day in other circuits, but it is now even clearer that the US Supreme Court will have to take up this issue before too long.

The Fifth Circuit opinion in Amy Unknown is authored by Chief Judge Edith Jones, and it starts and ends this way:

“Amy,” the victim of childhood sexual abuse and of a widely broadcast set of photos depicting her abuse, has pursued restitution under the Crime Victims Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet. Her appeal from the district court’s denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3). A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir. 2009). This panel was assigned, for ease of administration, both the direct appeal and Amy’s motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA. Consequently, Appellant’s petition for panel rehearing is granted; her petition for a writ of mandamus is likewise granted, and the case is remanded to the district court to determine the amount of restitution owed by Doyle Randall Paroline...

Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the CVRA. We therefore GRANT Amy’s petition for panel rehearing and likewise GRANT her petition for a writ of mandamus. Because the district court did not quantify the amount of restitution to which Amy is entitled or the fraction attributable to Paroline, the case is REMANDED for resolution of that issue.

As detailed in this USA Today piece, the "underage girl who Lawrence Taylor admitted having sex with before a guilty plea to a sex charge said Tuesday that the sentence of probation given to the Pro Football Hall of Famer was too lenient." Here is more:

The girl -- whom USA TODAY will not identify -- told reporters after Taylor was sentenced to six years probation in a New York court that she wanted to see him got to jail. "I am not a prostitute," she said. "I am a victim and I am hurting. I don't think the sentence given to Mr. Taylor is fair."

The girl was a runaway who was sent into a hotel room with Taylor in May 2010. Prosecutors have charged Rasheed Davis with being the pimp that sent the girl into Taylor's hotel room. The Hall of Famer admitted paying $300 for sex.

This AP piece provide more details about the sentencing and details that Taylor's probation term in six years and that he must register as a sex offender.

Friday, January 28, 2011

An Eleventh Circuit panel has an important ruling today in US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), concerning the federal law and practice of imposing restitution terms in sentences for downloaders of child porn. Here is how the McDaniel opinion begins along with some of the key legal determinations within the opinion:

Ricky Lee McDaniel was convicted of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). The district court sentenced him to 60 months of imprisonment and three years of supervised release and ordered him to pay restitution to “Vicky,” a child depicted in one of his images. McDaniel asks whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution. For the following reasons, we affirm....

First, we agree with the district court that McDaniel “harmed” Vicky under the meaning of section 2259(c) by possessing images of her sexual abuse as a minor.... Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography. They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child’s privacy by possessing their image. All of these harms stem directly from an individual’s possession of child abuse images. Thus the district court did not err in finding that Vicky was a victim of McDaniel’s possession of child pornography, and consequently, that she is eligible for restitution under section 2259....

Next, we hold that section 2259 limits recoverable losses to those proximately caused by the defendant’s conduct.... [T]he plain language of section 2259 ... covers, inter alia, “losses suffered by the victim as a proximate result of the offense.” § 2259(b)(3)(F)....

McDaniel next argues that his conduct did not proximately cause Vicky’s harm. Instead, he contends that her father and the distribution of the images caused her harm, and by the time he possessed the images, the harm had already been done. He asserts that restitution is appropriate only in cases where the defendant actually sexually abused a child or produced the child pornography because, in those cases, the defendant’s conduct actually harmed the child.

We disagree. Dr. Green explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues. He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky and that Vicky suffers “each time an individual views an image depicting her abuse.” We are not “‘left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).... Consequently, the district court did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses.

As a policy matter, I favor child porn downloaders having to pay some restitution to the children harmed and depicted in the pictures they download. And, in this case, "the court ordered McDaniel to pay Vicky $12,700" to help cover the costs of therapy for Vicky, which does no seem like an unreasonable award under the circumstances. But, for two reasons articulated below, I am struggling somewhat with how the McDaniel opinion gets to its ultimate conclusions on proximate cause in order to affirm the restitution award imposed by the district court.

1. As the explained in the opinion, Vicky was notified that McDaniel had downloaded her picture onlybecause the "National Center for Missing and Exploited Children (NCMEC) compares images and identifies the children depicted within [and] notifies an identified victim every time someone is arrested who is found to possess his or her image [and] the Government submitted McDaniel’s collection of images and videos to the NCMEC for identification of known victims after McDaniel’s re-indictment in June 2008." In other words, Vicky would never have known McDaniel had possessed her picture but forthe feds submitting the picture to the NCMEC andthe NCMEC altering Vicky that yet another person had her picture. In lots of jurisdictions, the independent acts of the feds and the NCMEC might well be viewed as "breaking the chain" of causation between McDaniel's offense of possession and the "slow acid drip" harms she experiences.

2. Relatedly, given that "Vicky sought approximately $185,000 for past psychological services and future counseling and therapy, and $3,500 in attorneys’ fees," and given that a witness testified that "Vicky would need approximately $166,000 to $188,000 of future counseling or therapy because of the damages she incurred from the original abuse and her awareness of the images on the Internet," it is unclear how the district court decided the restitution award here should be $12,700. Why not an award of the full amount of the cost of her future therapy? Alternatively, why not find out from the NCMEC how many times they have notified Vicky about her picture (which I suspect is hundreds, if not thousands, of times), and apportion the award accordingly?

Intrguingly, in a footnote to support its holding that proximate cause is required, the McDaniel opinion cites a key Fifth Circuit ruling to stress that "if there was 'no proximate cause requirement in the statute, a restitution order could hold an individual liable for a greater amount of losses than those caused by his particular offense of conviction.' In re Amy, 591 F.3d 792, 794 (5th Cir. 2009)." In turn, shouldn't the Eleventh Circuit be worried that requiring McDaniel to pay $12,700 for possessing a picture that hundreds (and perhaps thousands) of persons have possessed does not in fact make liable for a greater amount of losses than those caused by his particular offense of conviction? (McDaniel may not have appealed the amount of restitution awarded, but lots of district court have struggled and split over these issues that quickly get implicated once proximate cause is held to be a required showing.)

Friday, January 21, 2011

Victims sue in California to try to undo controversial commutation by former Gov Schwarzenegger

The notable controversy in California over a last-day commutation by the last governor has taken an interesing legal turn, which is detailed in this Los Angeles Times piece headlined "Family sues Schwarzenegger over commutation of Nuñez's sentence; The parents of Luis Santos, the 22-year-old who was stabbed to death in a confrontation with the son of former Assembly Speaker Fabian Nuñez, claim the ex-governor violated California's Victims Bill of Rights." Here are the details:

The parents of Luis Santos, a 22-year-old college student killed in a confrontation with the son of former Assembly Speaker Fabian Nuñez, filed suit against former Gov. Arnold Schwarzenegger in Sacramento on Thursday, claiming that his decision to reduce the younger Nuñez's sentence violated California's Victims Bill of Rights.

During his last hours in office, Schwarzenegger cut Esteban Nuñez's 16-year sentence for voluntary manslaughter to seven years, without notifying the Santos family. Schwarzenegger noted in his commutation order that Nuñez, although involved in the fight that ended in Santos' death, did not inflict the fatal knife wound.

Under the Victims' Bill of Rights, which was added to the state Constitution following a 2008 ballot measure, victims have a right to be heard "upon request" in any proceeding involving a "post-conviction release decision." One of the Santos attorneys, Nina Salarno Ashford, said the family members didn't have a chance to request a hearing because they didn't know Schwarzenegger was going to take action. The former governor had a duty to inform the family, Ashford said....

Days after releasing the commutation order, Schwarzenegger sent the Santos family a letter apologizing for not informing them of his decision. Fred Santos, the victim's father, accused Schwarzenegger of reducing the sentence as a favor to Fabian Nuñez, who as Assembly Speaker was often an ally of the governor's.

The suit asks the court to reinstate Nuñez's original 16-year sentence, which a San Diego judge imposed after a plea bargain that reduced the original charge of murder to the lesser charge of voluntary manslaughter.

Monday, January 17, 2011

The Wall Street Journal has this notable new piece , headlined "Fed prosecutors in NY get child porn restitution," reporting on some recent developments in the long-running saga concerning the awarding of restitution in child porn sentencings. Here are excerpts:

Federal prosecutors intent on stemming child pornography and helping care for its victims are increasingly going after the assets of offenders under an evolving change in Justice Department policy.

In one of the most recent cases, a former provost marshal at the U.S. Army's sprawling Fort Drum in northern New York was sentenced to almost six years in prison for possessing and sharing child pornography and will soon pay $10,000 each to two victims identified from among more than 700 images of children he had. The payments are meant to deter sharing images of exploited children and to help pay for their later psychiatric or other treatment, authorities said.

Federal prosecutors said there are thousands of cases nationally, the crime proliferating with the Internet. There are 163 open matters now in the Northern District of New York, ranging from criminal appeals to initial investigations that may become cases....

Assistant U.S. Attorney Lisa Fletcher prosecutes child porn cases almost exclusively, with another assistant at the Syracuse office assigned to help with the backlog. Federal prosecutors in three other offices are likewise busy, with ongoing federal investigations and referrals from county district attorneys. "We're getting more and more people with hands-on offenses and more and more people trying to meet underage kids," Fletcher said.

According to the Justice Department, its project against exploitation of minors has increased prosecutions 40 percent since 2006, with 2,315 indictments filed against 2,427 defendants in 2009 and almost 9,000 charged altogether over four years. More than 3,000 victims of child pornography crimes were identified, with many rescued....

While some offenders have challenged restitution, which began almost two years ago, and courts are still sorting out how to handle it, Butler agreed to pay $10,000 to each identified victim, Fletcher said. One, now 19, was rescued from an abuser at age 11. "Her picture is all over the Internet," the prosecutor said.

Defense attorney Thomas Cerio said Tuesday the payments are being processed. He said that Butler, married with children, expressed remorse at sentencing, for the victims and for letting his family and the country down. Butler also lost his pension. He wasn't producing pornography, Cerio said....

In other cases around the country, judges have approved victim payments ranging from $1,000 to $200,000. Prosecutors in North Dakota decided in September to appeal U.S. District Judge Ralph Erickson's rejection of nearly $3.7 million in restitution to two victims by Robert Scheiring. He was sentenced to 14 years in prison on charges of distribution and possession of child pornography. Authorities said they found more than 600,000 pictures and 2,400 videos.

"The main issue is taking a young child who is abused or photographed or videotaped. The videotape is passed around the Internet. How do you calculate the damage to that young child as the image is viewed?" [Assistant U.S. Attorney William] Pericak said. "Suppose it's viewed by 100 or 1,000 or 150,000 people. Is there extra damage from each viewing?"

Prosecutors and victim advocates say that there clearly is harm done. The children grow up and wonder if the people they meet have seen the images. Some will end up with hundreds of thousands of dollars in psychiatric, psychological or other treatment bills from the trauma of abuse.

Monday, January 10, 2011

Father of slain 9-year-old in Tucson calling for execution of shooter

As detailed in this New York Post article, which is headlined "Father of child killed in Giffords rampage wants death penalty," at least one victim of the shooting rampage this weekend in Arizona is already calling for the ultimate punishment for the offender:

Devastated by the death of his only daughter in the bloody ambush on Rep. Gabrielle Giffords, John Green — son of former Mets manager Dallas Green — today lashed out at the crackpot killer. "I think they should execute him," said a broken-hearted John Green, whose 9-year-old child Christina Taylor was fatally shot when crazed gunman Jared Loughner, 22, opened fire at a political meet-and-greet hosted by Giffords yesterday.

Giffords was critically wounded in the attack; Christina and five others at the event were killed....

The devastation has been overwhelming, John Green told The Post, unable to hold back tears. "She was born on 9/11, so when you look at the bookends of her life, they were pretty tragic," he said. "But everything in the middle was the best."...

The grieving dad [said] his daughter loved baseball, dancing, swimming and horseback riding. He feels nothing but disgust for the shooter who ended her life. "It would be a waste of millions of dollars" to keep him alive, he said. "They should use the money to help kids in school instead of some idiot."

As this long article in the Politico details, John Green's wish may get fulfilled. The piece is headlined "Federal charges could carry death penalty."

"Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma"

In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court. For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons.

First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat — rather than simply punish — those facing the liminal effects of military combat. Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators. Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma. This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.

Saturday, November 13, 2010

"An unusual sentence aims to make a killer remember his victim"

The call came at 8 p.m. A 19-year-old driving a Honda Civic had lost control and gone off the road. He over-corrected, the state trooper said, and smashed into Thomas [Tower] Jr.'s car. The impact ejected Thomas Jr., who fell into a field.

"By the time we got there, he was gone," [his father] said. Thomas Jr. was 28. The other driver, Andrew Gaudioso, was airlifted to a hospital where he spent four months in a coma. "We waited," Towers said. "But that kid was never charged."

Six months later, after Gaudioso was released from the hospital, Towers drove to the highway patrol station and demanded to see the wreck report. Gaudioso hadn't been drinking, the report said. But a blood test showed drugs in his system.

In an interview, prosecutor Sara Jane Olson wouldn't say what the drugs were, but Towers said he was told one was marijuana. "This kid got high and drove and killed my son," Towers said. "My son, who protected our freedom and fought for our country, died a mile from my home."

In April 2009, officers charged Gaudioso with vehicular homicide. His trial was supposed to start this month. But his lawyer, Laura Hargrove, asked to have the case dismissed. "There was a huge problem with the way they calculated his speed," she said.

Prosecutor Olson could have asked for an 8-year prison sentence for Gaudioso, but that wasn't what Towers wanted. "I didn't want him sitting there in the air-conditioning, watching TV on the taxpayers' dollars. And I sure didn't want to risk him going free."

He wanted to hear Gaudioso say he was sorry for all the pain he had caused. "I want him to apologize to my family — every week," Towers remembers telling the assistant state attorney. "I want him to remember, for the rest of his life, that he killed my son."

Gaudioso did not respond to interview requests for this story, but his lawyer said he was happy with the plea agreement. "He didn't want to go to prison." The defense attorney proposed postcards instead. One a week, for 15 years. That's 780 postcards.

"The only way I could keep my client out of prison was to come up with something creative," Hargrove said. "We didn't mandate what he had to say. Only that he has to send the postcards."

On Oct. 14, Lake County Circuit Judge G. Richard Singeltary signed off on the unusual plea agreement. He sentenced Gaudioso, 22, to 15 years of drug offender probation, during which he can't drink or use drugs. He also revoked his driver's license for five years and ordered him to pay $815 in fines.

And Gaudioso has to "mail a postcard to the victim's family via probation every week while on probation." If Gaudioso doesn't send one, he will serve the rest of his 15 years behind bars.

Radio stations and wire services across the country carried news of the sentence. Internet users discussed it on blogs from "simplejustice" to "Harrypottering." Everyone seemed surprised the victim's family would agree to let his killer go free. To Towers, the best punishment is to make the killer pay penance. "I need to know that he cares that he killed my kid."

Thursday, November 04, 2010

"Memory and Punishment"

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice.

For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, and by the broader community. Because this is so, new neurobiological techniques to modify memory — including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory — pose, in principle, special challenges for the just and effective distribution of punishment. This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.

Defendant Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine, was convicted of money laundering and conspiracy to commit money laundering. See United States v. Lazarenko, 564 F.3d 1026 (9th Cir.), cert. denied, 130 S. Ct. 491 (2009). In this appeal, Lazarenko challenges the district court’s order of restitution of more than $19 million to his co-conspirator, Peter Kiritchenko. We hold that, in the absence of exceptional circumstances, a co-conspirator cannot recover restitution. Because no exceptional circumstances exist here, we reverse and vacate the order of restitution.

This Lazarenko ruling acknowledges that it is making up law here when the plain text clearly does not exclude certain types of victims from the right to obtain restitution:

[Applicable victim restitution statutes set forth a] definition [that] looks only to whether the person was harmed; it does not consider whether the person also was a co-conspirator. Under the plain text of the MVRA and VWPA, therefore, co-conspirators have just as much right to restitution as do innocent victims.

But courts have recognized that Congress could not have intended that result. Otherwise, the federal courts would be involved in redistributing funds among wholly guilty co-conspirators, where one or more co-conspirators may have cheated their comrades. Indeed, the Second Circuit has held that an order of restitution from one co-conspirator to another was “an error so fundamental and so adversely reflecting on the public reputation of the judicial proceedings that we may, and do, deal with it sua sponte.” United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006); see also United States v. Weir, 861 F.2d 542, 546 (9th Cir. 1988) (suggesting that it would be improper to consider a participant to a crime as a victim of the crime for purposes of restitution). In other words, because a literal application of the plain text leads to absurd results, the plain text does not control.

We agree with the Second Circuit that, as a general rule, an order of restitution to a co-conspirator is a “fundamental” error that “adversely reflect[s] on the public reputation of the judicial proceedings.” Reifler, 446 F.3d at 127. Indeed, we suggested the same in Weir, 861 F.2d at 546. Only in exceptional circumstances would Congress have intended that a coconspirator to a crime be entitled to restitution.

I wonder if all committed textualists (including some on the Supreme Court), as well as all those committed to broad interpretations of victim rights, fully concur with the Ninth Circuit's decision in Lazarenko to invent an exception (with its own exception circumstances exception) to the plain term of the federal statutes providing for victim restitution.

To me, it is not obviously absurd that a federal offender's punishment should include a requirement of restitution to all victims financially harmed even if those victims are co-consiprators. Indeed, the rule adoped here would seem to give major fraudsters a tangible incentive to seek to co-opt their biggest victims into their frauds if/when they start fearing apprehension so as to reduce the risk of owing those victims restitution if/when convicted.

Friday, October 22, 2010

"Mini-Madoff" gets mini-sentence that should still be a functional life sentence

As detailed in this Reuters piece, which is headlined "Mini-Madoff Nadel Sentenced to 14 Years Prison," another high-profile Ponzi-schemer faced the sentencing music yesterday. Here are the basic details:

Arthur Nadel, a fund manager whose $168 million fraud was one of several that collapsed in the declining economy and left hundreds of investors without their money, was sentenced to 14 years in prison on Thursday.

Nadel, 77, dubbed "mini-Madoff" in his home state of Florida after epic swindler Bernard Madoff, was excoriated as "evil" and "a loser" by one of his victims during the sentencing proceeding in U.S. District Court in New York.

"Arthur, you are an evil person," said businessman Michael Sullivan of Barrington Hills, Illinois. "I assume you are a narcissistic psychopath" and "just a weak child seething with anger and loathing" who had "little success in life until you founded your fraudulent funds."

Judge John Koeltl rejected as too long U.S. prosecutors' requested sentence of between 19-1/2 years and 24 years, citing Nadel's age and a heart ailment. But Koeltl said Nadel orchestrated a "massive fraud" on investors, "many elderly and who lost the fruits of their lives," adding that "it caused financial difficulties to the victims and those close to them."...

Looking thin and frail with one of his sons present in the back of the court, Nadel stood in prison garb and told the judge that he had read letters submitted to Koeltl by many of his 390 victims. "Their anger and outrage became mine at myself," Nadel said. "I blame only myself for my acts."

His court-appointed lawyer had asked the judge to imprison Nadel for just five years, given his life expectancy, so that he would not die in prison.

I suppose it is possible that Nadel will live into his 90s and perhaps live out this 14-year federal prison sentence. But odds are that Arthur Nadel, like Bernie Madoff, will die in prison.

Sunday, October 17, 2010

"A Distributive Theory of Criminal Law"

The title of this post is the title of this interesting-looking new piece by Professor Aya Gruber, which is in the October 2010 of the William and Mary Law Review. Here is the abstract:

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment -– retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.

This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.

Thursday, September 23, 2010

Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvement

A helpful reader forwarded me a notable little ruling from the Third Circuit earlier this week concerning whether the Crime Victims Rights Act gives victims a right to have their counsel involved in sentencing proceedings. The short ruling in In re Zackey, No. 10-3772 (3d Cir. Sept. 22, 2010), can be downloaded below, and here a key portion:

Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines. Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing. Because we find that the District Court did not abuse its discretion, his petition is DENIED.

The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.” Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.” Subsequent to the District Court’s order, the government filed Zackey’s motion for restitution and attorneys fees under the name of the United States Attorney’s Office. Additionally, it has represented that it will seek an upward departure of the sentencing guidelines on account of Donahue’s acts that precipitated the destruction of Zackey’s credit rating and caused him severe emotional trauma. Because the government has not entered into any agreement that would compromise its ability to advocate unequivocally at sentencing for the rights of Donahue’s victims, these measures ensure Zackey’s rights under the CVRA will not be diluted in the absence of individual counsel.

The helpful reader who forward this ruling to me refers to Zackey as a "victim Gideon case." In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom. But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.

Tuesday, September 21, 2010

"State Crime Victim Recoveries"

The title of this post is the title of this interesting-looking new paper available via SSRN on state victim restitution policies and practicalities. Here is the abstract:

Crime victim recoveries are typically available in American states through three separate, but related, avenues: a criminal proceeding (with or without a formal charge); a related civil claim (including a pre-suit settlement); and, a related administrative or special court proceeding. Multiple avenues can be pursued simultaneously. These avenues often, but not always, have constitutional as well as statutory foundations.

Unfortunately state crime victims often go without recovery. Barriers to recovery include intrastate and interstate confusion over terms like restitution and victim. More can be done for victims, especially during criminal case sentencing. Unlike federal district courts, state criminal courts typically have general jurisdictional authority allowing broader opportunities for crime victim recoveries at the close of criminal cases. Better crime victim recovery procedures are especially warranted where there are explicit state constitutional law interests.

Monday, September 20, 2010

This local story from Virginia, which is headlined "Quadruple murderer avoids death penalty with plea deal," provides a number of cross-cutting perspectives on the administration of the death penalty. Here are the factual basics:

The suspect in the quadruple homicide that horrified this quiet college town a year ago pleaded guilty to murder charges today and was ordered to spend life in prison. Richard Samuel Alden McCroskey III, 21, of California, pleaded guilty to two counts of capital murder and two counts of first-degree murder in Prince Edward County Circuit Court for bludgeoning the victims with a wood-splitting maul a year ago in a Longwood University professor's home in Farmville.

McCroskey, who could have faced the death penalty, was sentenced to life in prison. He opted not to address the courtroom, which was occupied by family members of all four victims, law enforcement investigators and others.

Prince Edward County Commonwealth's Attorney James Ennis said McCroskey's anger about his relationship with his girlfriend, Emma Niederbrock, 16, led to the killings. McCroskey killed Emma; her mother, Longwood University professor Debra S. Kelley; Kelley's estranged husband, Mark Niederbrock; and Emma's friend, Melanie Wells, who was visiting from West Virginia.

Ennis said members of the victims' families supported his decision to reach the plea agreement instead of going to trial and seeking the death penalty. "What it really means is death in prison," Ennis said after the hearing. "It's a guaranteed outcome, and hopefully it will bring some measure of closure to the family."

Defense attorney Cary Bowen said his objective had been to minimize McCroskey's punishment and serve his interest as best as possible. "He's left families without their loved ones," Bowen said. "There are four people dead here. He's not proud of that." He said McCroskey is remorseful and has contemplated the severity of what he did.

A family spokeswoman released a statement from Kelley's parents, Thomas and Margaret Kelley, saying they are thankful that the case is over and that they may now "have some degree of closure." They also thanked police and everyone who supported them. "We have endured a tragedy of unspeakable proportion," the statement reads. "We are relieved that justice has been done. While we will never forget our loved ones or the circumstances of their deaths, we hope to move forward and begin the healing process."

In light of the apparent horrific nature of the defendant's crime (and the lack of any apparent doubt over guilt), I am a bit troubled by the prosecutor's willingness to take the death penalty off the table in this case. And yet, since I tend to be a strong support of victim rights in these setting, I am sympathetic to the prosecutor's decision here given that the victims' relatives were apparently eager for the "closure" that the plea deal provided.

The fact that quadruple-murderer McCroskey has now been able to escape the Virginia death penalty through a plea and a statement of remorse will likely become another talking point for those folks urging that Virginia call of the execution of double-murderer Teresa Lewis scheduled for late this week. Indeed, I find it notable that this McCroskey plea deal was cut the very first working day after Virginia's Governor denied clemency to Lewis late Friday night (as reported here). Had the timing been reversed, I think there would have been even more pressure on Governor McDonnell to explain why a quadruple-murderer like McCroskey gets a break while a mere double-murderer like Lewis gets the needle.

Thursday, September 16, 2010

As detailed in this new article from the Kansas City Star, which is headlined "Long prison sentence, restitution sought in child porn case," federal district court around the country continue to confront the challenging and unsettled issue of whether and how they can and should order restitution as part of a federal sentence for downloading certain child pornography pictures. Here are the particulars:

The nightmare never ends for the young woman known around the world as “Vicky.” Every day, new letters arrive in her mailbox informing her that another man has been arrested for having on his computer pornographic images of her being raped as a child.

One of those men was in a Kansas City courtroom Wednesday to face sentencing for receiving and possessing thousands of images of child pornography, including a nearly two-hour video of Vicky being abused as a 10-year-old.

William Harold Laursen, a former music teacher at two area schools, last year pleaded guilty to the charges. On Wednesday, federal prosecutors sought not only a lengthy prison sentence but an order for Laursen to pay restitution to Vicky.

U.S. District Judge Howard Sachs took the matter under advisement after a morning of testimony, including how the videos of Vicky’s abuse at the hands of her father are some of the most widely disseminated child pornography images on the Internet.

“There’s no end to it,” said Randall Green, a psychologist who has examined the now-20-year-old woman in the Vicky series of images. “She feels she is serving a life sentence.” Not only must she deal with the trauma of being sexually assaulted by her father, but she must live with the knowledge that thousands of others have seen her being abused, Green said. She suffers from myriad psychological problems that will require a lifetime of therapy, and she continually is fearful that people she encounters may recognize her from the videos, he said.

Though she lives in another state and did not attend Wednesday’s hearing, prosecutors have provided her written statement to the court. “Thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them,” she said. “It terrifies me that people enjoy viewing things like this.”...

Seeking restitution for child pornography victims from those who download and disseminate their images is relatively new. To date, various courts have ordered about $44,000 in restitution to Vicky, according to a statement from her attorney.

Vicky is not her real name, but some downloaders of her childhood images have learned her real name and have attempted to contact her, Green said. One even created a video called “Where’s Vicky Now?” and combined current images of her with the pornographic images from her childhood, he said.

Laursen, 57, of Kansas City, formerly taught at Kansas City Academy and at CS-1 School in Prairie Village. He did not testify during Wednesday’s hearing in U.S. District Court in Kansas City. His attorney, Tom Bath, pointed out in his questioning of witnesses that there were no allegations or evidence that Laursen ever touched a child inappropriately.

I am deeply saddened by the fact that "Vicky" still suffers greatly as a result of her sexual abuse and the continued circulation of images of her victimization, and I would readily credit the psychologists assertion that "there’s no end" to the harms that "Vicky" continues to endure.

But this reality makes the legal debate over restitution in child porn downloading cases even more challenging. If there is no end to the harms that Vicky is suffering, should there likewise be no end (either temporally or monetarily) to her ability to collect restitution award from any and every defendant who has ever downloaded her pictures?

Friday, August 27, 2010

Debate in Hawaii over how tough to get on drunk drivers who kill

This local story from our 50th state, which is headlined "Prosecutors, defense attorneys spar over sentencing of deadly drivers," highlights that sentencing judges are sometimes inclined to give a break to drunk drivers even when they kill. Here are excerpts:

Honolulu prosecutors on Wednesday unsuccessfully sought a 15-year prison term for the driver responsible for a deadly crash in Mokuleia four years ago. It was the latest in a string of sentencing disappointments for them and the families of crash victims.

We've seen it many times now -- a tearful plea by a person whose loved one was killed in a crash involving drunken driving and/or excessive speeding. "I really wish you would think really hard on the sentence," Joyce Somera, victim's sister, told the judge at a sentencing Tuesday.

Often, a family's loss is compounded by a seemingly lenient sentence for the driver responsible. Keanan Tantog killed a person and injured another, and received probation and a one-year jail term.

Tyler Duarte took two lives, and was sentenced to probation and 18 months in jail. Billy Lamug -- who wasn't intoxicated but was excessively speeding -- killed two people and injured a third. He was sentenced to probation and community service.

"Each one of these families have lost somebody that they've loved forever," Douglas Chin, acting city prosecutor, said. "What's too bad is it seems like the court is more often taking into consideration what's happening for the defendant."

A judge sitting on a standard second-degree murder case has no discretion. It's a mandatory life sentence for that intentional killing. But in a vehicular homicide, whether negligent or reckless, a judge has discretion and must consider several factors, including the defendant's criminal history. If there's no prior record, the driver will likely sidestep the maximum prison term -- even if alcohol was involved in the deadly crash.

"In these cases, a judge is faced with a situation where a good person is dead, but a good person's life now also hangs in the balance," Victor Bakke, defense attorney, said. "The judge's job is not revenge."

"The argument that they've never done it before, it's never happened, doesn't hold much water with me because the fact is they've done it now," Sen. Sam Slom, Senate Judiciary Committee member, said. Slom says a decade ago, very few of these drivers went to jail at all. But since then, the laws have become tougher. In light of the recent sentences being handed down, he says the committee should revisit the issue next session.

Tuesday, August 17, 2010

"3rd trip to Texas death chamber for grieving dad"

The title of this post is the headline of this notable local article from Texas providing a notable perspective on one victim's view of the administration of the death penalty in a high-profile case:

Randy Ertman knows the road to the Texas death chamber too well. He’s set to make the trip again, to witness for the third time the execution of one of the gang members responsible for the rape and murder of his teenage daughter and her schoolmate.

This time, it will be the lethal injection on Tuesday of Peter Anthony Cantu, the leader of the five young men who were sentenced to die for the June 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena.

It’s not lost on him that Cantu has lived in prison longer than Jennifer and Elizabeth were alive. “He should have been hung outside the courthouse,” Ertman said in an interview with The Associated Press. “I don’t mean this in a gruesome way, but if they want to make the death penalty a deterrent, up in front of (Houston) City Hall, they’ve got all these beautiful trees. They should have hung them. If they hung all five of them, that would be a deterrent.”...

The case horrified Houston. Nearly two decades after friends and relatives frantically distributed flyers offering a $10,000 reward for help finding the teenagers who failed to return home from a summer pool party, prosecutor Donna Goode still has one in her office. “Two beautiful young girls,” Goode says. “I think about them.”

Their battered and decomposing bodies, left to mummify in a wooded field in the relentless heat of Houston’s summer, were found four days after they disappeared. “They become everybody’s daughter,” recalled Don Smyth, a retired Harris County assistant district attorney who had helped prosecute Cantu. “Parents always worry about their kids, especially their daughters.”

Of the six people convicted, five were sentenced to death. Two who were 17 when the girls were killed were spared the death penalty when the U.S. Supreme Court barred execution of people who were under 18 when they committed their crimes. The person not sentenced to death, 14 at the time, got a 40-year sentence.

Two of Cantu’s companions in the gang they dubbed the Black and White preceded him to the death chamber. Ertman made the drive here four years ago for the first execution. Derrick O’Brien, belted to a gurney, looked through the death chamber window at Ertman and other relatives of the girls and called his involvement “the worst mistake that I ever made in my whole life.” Seven minutes later, O’Brien was dead.

In August 2008, Ertman again climbed the steps to the red-bricked Huntsville Unit prison. Mexican-born Jose Medellin, 33, with needles in his arms, also apologized. Nine minutes later, he was dead.

Ertman rejected an invitation from Cantu’s lawyer to come to his office and read a letter of apology from Cantu. “It’s a little late,” Ertman said. “I told him to stick it. Hell, no.”

Thursday, August 12, 2010

A helpful reader altered me to this notable local sentencing story from Philadelphia, which is headlined "Philadelphia-area thief gets 21 years house arrest." Here are the fascinating details:

An office manager who admitted stealing $475,000 from her employer has been sentenced to 21 years of house arrest so she can work to repay it. Lanette Sansoni's unusual sentence came after her ex-boss said he was more interested in restitution than jail time, her lawyer said.

"This was just a creative compromise," defense attorney A. Charles Peruto Jr. said Thursday. "I think it will encourage her to pay it off, so the judge was pretty smart about it."

Peruto, a veteran defense lawyer in the region, guessed the two-decade term may be a record for house arrest in Pennsylvania. State officials could not immediately confirm that.

Sansoni, 40, has repaid about $275,000 after selling her home in Warminster, just north of Philadelphia, and moving in with her mother. She will remain on house arrest until the remaining $200,000 is repaid to Kenneth Slomine, who owned JRS Settlement Services, a title company in Lower Moreland Township.

Montgomery County Judge Joseph A. Smyth on Wednesday set a payment schedule of $750 a month, which works out to about 21 years. Sansoni can leave home to work but could go to jail if the payments stop. She has a job paying $700 a week, Peruto said, but he wouldn't disclose what it is.

Prosecutors had argued for incarceration for Sansoni, who also served as a title clerk at JRS before it went bust because of her theft. "This is a case that just cried out for jail time," said Assistant District Attorney Steven Bunn, who called Sansoni's crimes "egregious."

"She's not stealing to make ends meet," Bunn said. "She was buying luxury vacations, designer handbags, designer jewelry, and basically living the high life while this company went under."...

Peruto said he expects Sansoni to pay off the debt early and be released from house arrest. "I wouldn't be shocked," he said, "if it was paid off in a couple of years."

Wednesday, August 11, 2010

Regular readers know that the issue of whether child porn downloaders should have to pay restitution to the victims portrayed in the pictures they possess has divided federal district courts. Another such decision and its import is highlighted in this new New York Law Journal piece, which is headlined "Online Viewer of Child Pornography Ordered to Pay Restitution to the Victim: Courts nationwide have split over requiring restitution for child pornography victims who did not know their pornographers or those who viewed the images." Here are excerpts:

A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl.

Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."

While federal courts, including those in the 2nd U.S. Circuit Court of Appeals, have upheld restitution in instances where contact between children and their abusers provided the requisite causation under U.S.C. §2259, a "more difficult question" for federal courts has been in cases involving the absence of direct causation between a victim's injuries and a pornographer's actions, Sharpe ruled in United States v. Aumais, 08-cr-711.

His Aug. 3 decision affirmed in full a report, recommendation and order from U.S. Magistrate Judge David R. Homer that directed payment of $48,483 for future psychological counseling to the victim identified as "Amy," who was abused between the ages of 4 and 8. The magistrate judge said the matter was a case of first impression in the 2nd Circuit....

Gene V. Primomo, an assistant federal public defender, said Tuesday he has filed notice that he will appeal Sharpe's determination to the 2nd Circuit. He said the ruling is potentially a "huge" one for both the defense and the prosecution in child pornography cases, given the wide electronic capability of disseminating illegal images and improving technology to trace when images are downloaded....

Before sentencing, the U.S. government sought restitution for Amy, a request that was joined by her attorney, James R. Marsh. Marsh said authorities have now interceded in more than 500 cases seeking restitution for Amy. Under the federal Crime Victims' Rights Act of 2004, government prosecutors in most cases must pursue restitution claims if children who are victims of sex crimes request they do so.

"We're very happy with this decision," Marsh said Tuesday. "The magistrate judge made a very well-reasoned analysis of the proximate cause issue. We were disappointed about his finding on the future wages issue." Told of Primomo's plan to appeal, Marsh, who has expanded his New York firm to deal with child pornography restitution cases, said he welcomed the appeal.

Monday, August 09, 2010

Is Ohio (and the common law) not tough enough on negligent vehicular homicide?

The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month. The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:

Richard Crabtree was killed Feb. 1 in a car accident. He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.

The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.

"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.

Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington. The light turned red.

"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said. "You have the right to clear that, once everything's stopped. The other vehicle, for whatever reason, ran the red light."

The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.

Tirpak never accepted blame for the crash, Fridley said. He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him. "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.

Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license. A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.

In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine. Judge David P. Sunderman found him guilty in Delaware Municipal Court.

Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation. He also was fined $1,000, sentenced to community service and lost his driver's license for five years.

"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.

When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding. She could make peace with that. But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....

Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio. Ruffing would not speak about the Tirpak case in any detail. He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....

Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets. She can expect only $12,500 from his insurance company.

There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy). But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges. [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[

Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident. [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.] That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules. If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.

UPDATE: In response to helpful comments, I have tweaked the commentary in this post to be more accurate. Most of the tweaking appears in brackets above.

Wednesday, August 04, 2010

"Private Plea Bargains"

The title of this post is the title of this great forthcoming piece from my Ohio State colleague Ric Simmons, which is now available via SSRN. Here is the abstract:

This article analyzes the phenomenon of private criminal settlements; that is, settlements in which the victim or witness agrees not to report the perpetrator to the police in exchange for some consideration on the part of the perpetrator. The article first examines why these settlements occur and then determines whether or not they should be permitted, and if so, under what circumstances.

There are two different paradigms that can be used in analyzing private criminal settlements. The first paradigm, which has been used by scholars who have previously considered this issue, has been to treat these settlements as a form of blackmail. Legislatures in every state have also used this paradigm to criminalize private criminal settlements. But as the article points out, the justifications for criminalizing these agreements under a blackmail paradigm turn out to be particularly weak.

The article goes on to analyze private criminal settlements under a different paradigm, by treating them as the private analogue to public plea bargains. Using this analysis, the true cost of these agreements becomes apparent. Public plea bargains have long been criticized as providing a sort of second-class justice, but many scholars have also concluded that the process of plea bargaining brings certain benefits to the criminal justice system. The article applies the critiques of plea bargaining to private criminal settlements, and concludes that private settlements share all the drawbacks and costs of public plea bargains, while providing almost none of the benefits.

The article ends by discussing the implications of this analysis for current laws regarding private criminal settlements. It concludes that private criminal settlements should remain criminalized, but with one significant exception: settlements made between individuals who had a pre-existing relationship should be permitted.

Monday, August 02, 2010

Charlie Sheen cuts a plea deal to avoid any prison time for domestic violence offense

Anyone who was concerned that Lindsay Lohan got treated a bit too well by the criminal justice system now has another celebrity sentencing about which to complain. Here are all the details thanks to this new story at E! Online, which is fittingly headlined "He's No Lindsay! Charlie Sheen Pleads Guilty, Gets Sweetheart Sentence":

It might actually be really great to be Charlie Sheen. Seven months after the fact, the extremely well-paid sitcom star pleaded guilty to third-degree domestic violence for his heated Dec. 25 confrontation with wife Brooke Mueller.

And, instead of heading directly to an Aspen jail as a previous plea deal stipulated, Sheen is expected back at work tomorrow on Two and Half Men. His home base for the next 30 days will be a rehab center in Malibu, where he'll work on "behavioral modification."

There's a Pitken County employee who's going to be getting a big bouquet of flowers soon...

Once upon a time Sheen was going to spend 30 days in jail in exchange for the court dropping felony menacing and misdemeanor criminal mischief charges against him. His deal "hit a snag" in June, however, when Beverly Campbell, an employee of the county's Jail Administrative Offices, decided that the actor didn't quality for their system's work release program — which was one of the major perks of his deal.

So, after further negotiations, Sheen's attorney, Yale Galanter, somehow wrangled a 30-day stay at Promises, aka celeb rehab central, in Malibu and 36 hours of domestic violence and anger management counseling for his mischievous client. Galanter also represented Mueller in the aftermath of Sheen's arrest.

Beyond the specifics of Sheen's "sweetheart" deal here, I wonder if readers are also troubled by the notion of the same attorney representing Sheen in this criminal case and also the victim of his offense in the "aftermath of Sheen's arrest." Am I wrong to wonder if the attorney here may also be benefiting in various ways from some kind of a sweetheart deal?

Monday, June 14, 2010

Restitution, victims' rights, and a classic battle of law versus equity with a twist

The more I reflect on the Justices' work today in the Dolan restitution ruling (available here), the more I think the myriad legal issues surrounding restitution and victims' rights at sentencing will be confounding lower courts and SCOTUS for years to come. I say this largely because, as Dolan shows, issues of restitution and victim's rights in the operation of modern criminal justice systems often present lots of hard questions concerning how to balance law and equity in criminal justice case processing.

As noted here in my first post on Dolan, what makes the ruling so interesting is the composition of the 5-4 ruling: Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas to agree on a pro-victim approach to judicial authority to impose restitution outside statutory time limits, while Chief Justice Roberts authors a sharp dissent accusing the majority of undermining "a system of rules" which garners the votes of Justices Kennedy, Scalia and Stevens. I think the vote break-down is so notable and unusual largely because the equitable approach to the applicable restitution law adopted by the majority in this case helps a victim at the expense of a defendant (in contrast to the usual criminal case in which the defendant is urging a court to do equity and the state is urging fidelity to "a system of rules").

I predict that lots of future debates over restitution and victims' rights at sentencing — on issues ranging from who qualifies as a victim to how causation principles should limit restitution awards — will boil down to the same sort of fundamental debate over law and equity that plays out in Dolan. In this notable first round, it appears that an equitable outcome for victims has carried the day. But I suspect that, in the many brewing future battles, defendants will have some success arguing that fidelity to the rule of law has to generally carry the day.

Tuesday, June 08, 2010

"Protecting Crime Victims in Federal Appellate Courts"

The title of this post is the first part of the title of former-judge and now Professor Paul Cassell's latest article advocating for the federal Crime Victims' Rights Act to be given a broad reading. This article is available here via SSRN and its full title is "Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provisions." Here is the start of the piece's abstract:

In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . . The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”

The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.

Friday, May 21, 2010

Detroit City Council to make a victim impact statement in sentencing of former mayor Kwame Kilpatrick

This local article, which is headlined "City Council Writing Victim Statement: Council's Statement To Be Read At Ex-Mayor's Sentencing," reports on an intriguing example of victim input in a high-profile sentencing. Here are the basic details:

Members of the Detroit City Council want their voices heard next Tuesday in the form of a victim impact statement when former Detroit Mayor Kwame Kilpatrick is sentenced for probation violation.

Council members were meeting with attorney William Goodman Friday to draft the statement. Goodman represented the council when it tried to force Kilpatrick from office before he resigned.

Council members said they want the statement, which will spell out the damage they say Kilpatrick has caused the city, to be read before his sentencing in Wayne County Circuit Court next Tuesday morning.

The Michigan Department of Corrections has said it already has finished Kilpatrick's pre-sentencing report.

Last month, Groner ruled that Kilpatrick violated terms of his probation by failing to report assets and turn over tax refunds toward restitution owed the city. Kilpatrick pleaded guilty in 2008 to misconduct tied to his lying under oath about an affair with a staff member in a whistle-blowers' lawsuit. He served almost four months in jail, agreed to give up his law license and his political career and repay the city $1 million for settling an employment lawsuit related to his misdeeds.

He had been making monthly payments of $3,000 while living in the Dallas area and working as a salesman for information-technology company Covisint.

In February, Groner ordered the stepped-up payments of $79,000 within 30 days and another payment of $240,000 within 90 days after a contentious six-day hearing, spanning from October to December -- which was triggered by Kilpatrick’s claim that he had only $6 a month left after living and family expenses in his new home in Southlake, Texas.

During the hearings, prosecutors revealed Kilpatrick and his wife had hidden assets; put money in other accounts, including $240,000 in loans; live in a rented mansion; and drive fancy SUVs....

Kilpatrick's attorney Michael Allen Schwartz has said he doesn't believe Kilpatrick should serve jail time because that would impede his ability to work and pay back the city.

Wednesday, May 19, 2010

Ponzi schemer suggests European losses should be excluded from sentencing calculations

This local story about a federal hearing from Tennessee highlights some interesting sentencing arguments being made about a ponzi schemer. Here are highlights:

Convicted Gatlinburg swindler Dennis Bolze will testify today in a hearing to determine what factors should be considered in determining his sentence.... Bolze is seeking a reduction in a recommended sentence range of 27 years to 33 years and nine months.

Sentencing is set for June 22. Two of Bolze's local victims testified earlier today. "Dennis Bolze deserves the maximum penalty," said Don Cason, who was a close personal friend of Bolze.

Cason said he and his family have lost nearly everything in Bolze's Ponzi scheme. "He reached into our heart, grabbed it and threw it out," Cason said.

Bolze, hoping to reduce the recommended minimum prison sentence of 27 years, asked to have his dealings in Europe - where most of his victims live - to not be counted against him when his sentence is determined.

Federal prosecutors responded by describing Bolze as a man of "stunning audacity" who should serve close to 34 years in prison.

Documents filed in U.S. District court indicate that Bolze backed off his request to be excused from his European deals after he and his lawyer read letters from victims and reviewed the evidence against him. But he continues to seek a lesser sentence based on other grounds.

Bolze, 60, pleaded guilty in November to running a Ponzi scheme that raked in $21.5 million. Besides the Europeans, his victims include close personal friends in East Tennessee. "Bolze personally traveled to Europe to pitch his Ponzi scheme," Assistant U.S. Attorney Trey Hamilton said in court pleadings. "(His) scheme to defraud had no substantive difference between foreign and domestic investors."...

Hamilton describes as "outlandish" a plan Bolze submitted for making restitution to the victims. And he noted that the seizure and planned sale of Bolze's only known major asset, his 16,000-square-foot custom built home in Gatlinburg, will be of no benefit to his investors because it was used it as collateral to secure several loans.

In their push for a maximum sentence, prosecutors filed as exhibits letters from several devastated and angry investors, whose names were redacted. "I am now 58 years of age and have been in a wheelchair disabled by polio most of my life," one investor wrote. "My mother's money was to help me with my every day living, especially as I got older."

"I personally have lost all of my life savings and all of those of my 85-year-old father," another victim wrote. "Dennis Bolze has robbed me of a contented, financially secure retirement. He has caused my elderly parents great trauma and anxiety."

Sunday, May 16, 2010

This piece in the Detroit News, which is headlined "Lawyer may face sanctions in child pornography case," reports on a fascinating conflict between a judge and a defense lawyer over the process surrounding the role of a victim in a child porn sentencing. Here are the interesting details:

A lawyer faces possible sanctions after filing a motion in a child pornography case that a federal judge described as "a blatant attempt to intimidate the minor victim's mother." But the National Association of Criminal Defense Lawyers has come to the attorney's defense.

U.S. District Judge Bernard A. Friedman said in a May 3 order that a motion from Troy attorney John Freeman seeking formal notice that the victim's mother wished to speak at a sentencing hearing was "unwarranted, baseless and worthy of contempt of court." Friedman said he will hold a hearing on whether and how Freeman -- a former federal prosecutor -- should be sanctioned. A date has not been set.

On April 15, Friedman sentenced former Walled Lake Schools official Craig Aleo to 60 years in prison -- more than double what prosecutors requested -- for crimes that included manufacturing child pornography in which a 4-year-old girl was victimized. Aleo, 64, of Davisburg, has filed a notice of appeal.

Prior to the sentencing, Freeman filed a motion citing the Crime Victims' Rights Act. In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child's mother so he could appropriately respond. Friedman said no such requirement exists, and the motion "serves as yet another indication ... of the incredible lack of remorse for the victim in this matter."

In a response filed last week by Freeman and his attorney Martin Crandall, Freeman said his motion was intended to "address a potential conflict between (Aleo's) due process rights and a victim's right to be heard at sentencing" and was "never intended to intimidate a witness, nor prevent a victim from being heard."

Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers. "The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary," Feinberg said Friday. The association "needs to make sure lawyers are free to aggressively represent their clients."

As detailed here, the CVRA only provides a right of notice to victims, not a right of notice to a defendant about what victims are likely to say. Consequently, if Freeman cited only the CVRA to support his motion for defense notice, his motion was misguided. But, absent strong evidence that Freeman has some truly nefarious intent, even a misguided defense motion requesting notice hardly seem like a sanctionable action.

Tuesday, May 11, 2010

Notable new note on the CVRA and victims of financial fraud

Thanks to this post at CO, I see that the May 2010 issue of the Minnesota Law Review has this interesting new student note on the ways lower courts are stuggling with aspects of the Crime Victims' Rights Act. The note is by Julie Kaster and is titled "The Voices of Victims: Debating the Appropriate Role of Fraud Victim Allocution Under the Crime Victims' Rights Act." Here is the abstract:

The economic collapse of 2008 witnessed the greatest explosion of financial fraud cases in recent memory. The Crime Victims’ Rights Acts (CVRA), a federal statute granting victims rights in court, gives victims of financial swindlers a day in court to recount their financial hardships—a process known as victim allocution. The CVRA also gives victims the ability to petition for a writ of mandamus if the district court fails to respect the right of allocution. Victims’ rights to allocution are not absolute, however, as the CVRA grants the court the ability to fashion “reasonable procedures” to limit victim allocution. Circuit courts divide over the standard of review that appellate courts should use when reviewing mandamus petitions on issues such as victim allocution. This stark division highlights an underlying tension in the criminal justice system and requires probing analysis into the benefits of allocution, the constitutional protections for the defendant, and the scarce judicial resources of the court. This Note urges Congress to amend the CVRA to empower district courts to limit victim allocution and subject that decision only to the traditionally high standard of mandamus review on appeal.

Sunday, May 09, 2010

What sentence might victim Sarah Palin urge for her hacker?

In this postfrom last weekend, I noted that there were lots of interesting and important computer crime sentencing issues raised by the recent conviction of a college student who hacked into Sarah Palin's Yahoo Mail account in 2008. One of those issues concerned whether under the federal Crime Victims Rights Act, Sarah Palin would formally qualify as a "victim" of the criminal hacker. Professor Paul Cassell, who is an expert and frequent litigator under the CVRA, responds via this postat The Volokh Conspiracy with these insights:

[Would] Sarah Palin ... be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced[?] The answer to that question, I believe, is clearly “yes.”...

The CVRArequires that a person be “directly and proximately” harmed by an offense to be protected by the statute. Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status.

Sarah Palin has condemned the crime – and applauded the recent verdict – on her Facebook page. It is probable that the Probation Officer preparing the pre-sentence report will contact her. Perhaps she will want to pass along comments directly to the judge as well. If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right.

These helpful points in turn prompt the question that is the title of this current post: what sentence might Sarah Palin urge for her hacker? I suspect she might avoid recommending (at least publicly) a specific prison term, but might she urge (publicly?) some kind of shaming sanction or community service as part of the sentence?

Would it be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking, and might Palin seek to be involved in such a shaming/service project? At the very least, such a video would make for a good Facebook link.

Saturday, May 01, 2010

As detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase. Here are the basics:

David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor. A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.

The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.

Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.

Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."

The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.

The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.

In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.

"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote. "America's elections depend upon fair competition. Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play. As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."

Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case. For example:

1. Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings? Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?

2. Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing? On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play." But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.

3. Should Kernell's age be an aggravating or mitigating factor at his sentencing? On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy. But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.

I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service? is the recommended guideline range really likely to speak to any of the special factors involved in this case? Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?

Saturday, April 24, 2010

"Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"

The title of this post is the title of this interesting new piece on SSRN from Regina Austin. Here is the abstract:

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.

The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies. The common reception of home photographs and moving images affects the interpretation of victim impact videos. As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims.

The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence. He wound up with a judgment of life without the possibility of parole. Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment.

Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder. Finally, the conclusion offers recommendations for the admission of victim impact videos.

It is my understanding that the submission by defendants of mitigating video evidence at sentencing is becoming a quite common in some courthouses. Thus, I wonder if the author here or others who agree that certain kinds of "videos are typically too idealistic and idyllic to be really probative evidence" would also be inclined to preclude defense submission of videos.

Thursday, April 22, 2010

Some notable new developments in the Polanski prosecution

As detailed in this AP article, "An appeals court on Thursday denied a petition by Roman Polanski's victim to dismiss the three-decade-old sex case against the director." Here's more:

The California Second District Court of Appeal denied the petition by Samantha Geimer without comment.

Geimer's attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California's constitution gave her more rights as a victim to influence the case. "She is a person who is harmed by the maintenance of the prosecution and she wants it to end," Geimer's attorney wrote in the petition for dismissal. "She has not been treated fairly."

Prosecutors argued in a filing last week that voters' decision in 2008 to include a victim's bill of rights in the state's constitution didn't grant Geimer or other crime victims the authority to end prosecutions.

Thursday's ruling is unlikely to have any immediate bearing on Polanski's status. The Oscar-winning director remains on house arrest at his chalet in the Swiss resort of Gstaad. The appeals court has not yet ruled on another petition his attorneys filed earlier this year, records show.

Though this ruling is not unexpected, I was somewhat suprirsed by this news report, headlined "Roman Polanski asks President Obama for clemency." Here are the details:

French President Nicolas Sarkozy has hand-delivered a letter to President Obama from fugitive director Roman Polanski, according to a new report. The Daily Beast website claims a French political magazine has published a report stating that Polanski made the private plea for clemency.

The website writes: “In an astonishing act of backroom international diplomacy, French President Nicolas Sarkozy hand-delivered a letter from fugitive Oscar-winning filmmaker Roman Polanski to President Barack Obama last week on the sidelines of the international anti-nuke proliferation summit in Washington, according to a small and little-noticed article embedded in the prestigious French political magazine, L'Express.”...

The letter, which is not directly quoted in the L'Express article, is said to suggest that the two months the aging director spent in a Swiss prison, in addition to the 47 days that he spent in detention in California in 1977, should suffice for the crime of unlawful sexual intercourse he pled guilty to.

Saturday, April 17, 2010

The significant (and valuable) role of California's death penalty in the Chelsea King case

As regular readers may know, I consider the death penalty's role as a catalyst for resoving difficult murder cases via pleas to lesser sentences to be one of the least appreciated and most important justifications for preserving this ultimate punishment. For this reason (and others), I found especially significant and interesting the role that the California death penalty appeared to play in yesterday's plea deal resolution of the high-profile Chelsea King murder.

First, here are the basics from this press report, which is headlined "Sex offender pleads guilty to killing two teen girls: In a deal to avoid the death penalty, John Albert Gardner III admits to the murders of Chelsea King, 17, and Amber Dubois, 14."

A 31-year-old registered sex offender pleaded guilty Friday to murdering two teenage girls in northern San Diego County in a deal that spares him from the death penalty. John Albert Gardner III, who previously served five years in prison for beating and molesting a 13-year-old girl, pleaded guilty to the murders of Chelsea King, 17, and Amber Dubois, 14, both during rape attempts. In exchange for his plea at the hastily arranged hearing, Gardner will be returned to prison for life, without the possibility of parole....

Deputy Dist. Atty. Kristen Spieler told Danielsen that Dist. Atty. Bonnie Dumanis agreed to the plea bargain after "careful consideration of the feelings and opinions" of the victims' families.

In a news conference after the plea, Maurice Dubois, Amber's father, said the agreement allowed "justice and closure" for his daughter. Brent King, Chelsea's father, said lengthy court proceedings would have had a "destructive effect" on their 13-year-old son, Tyler, and the community and distracted from the family's campaign for tougher laws for sex offenders.

Dumanis said that without Gardner's guilty plea, her office would not have had enough evidence to take him to trial for Amber's murder.

Second, consider this effective press analysis, which is headlined "Scholars: Plea deal can work for both sides: Families avoid trail, killer avoids death penalty":

Shaun Martin, a University of San Diego law professor who has been following the case, ... Martin noted that taking the death penalty off the table not only spares prosecutors and family members a trial and the possibility of an acquittal, it also saves the state millions of dollars in legal expenses.

Because death sentences come with an automatic and lengthy appeals process, the state typically spends years on appeals and spends $2 million or more to impose the penalty, he said.

“Look at David Westerfield: He’s still around,” said Martin, referring to the Sabre Springs man convicted of killing Danielle van Dam in 2002. “When you can avoid a trial and have someone put in prison for the rest of their life, that’s not all that different than someone sentenced to death — at least for the next 15 years.”

Finally, let's all reflect on how not only the availability, but also the rareness, of executions in California seems to have been essential to greasing the wheels of justice in this case. Without the prospect of a death sentence John Albert Gardner seem very unlikely to plead guilty (especially in the Amber Dubois case). But without the prospect of 20+ years of capital litigation over a death sentence before an execution, the prosecutors and the family of the victims likely would not have been willing or eager to let Gardner cut this deal.

State prosecutors arguing against rights of victim in Polanski case

As detailed at this link, tomorrow officially starts National Crime Victims’ Rights Week (NCVRW), which has been a special week designated by the US Department of Justice for "promoting victims’ rights and honoring crime victims and those who advocate on their behalf" each April since 1981. Thus, there is a special and sad temporal irony in this notable news story out of California, which is headlined "Prosecutors argue Polanski victim can't alter case." Here are the details:

Roman Polanski's victim cannot ask for the 32-year-old sex case to be dismissed against the fugitive director or otherwise impact the case, prosecutors argued in a court filing Friday.

In a filing to the California Second District Court of Appeal, Los Angeles County prosecutors argue a recent constitutional revision spelling out crime victims' rights does not grant them the power to determine the outcome of criminal cases.

They are also asking the appeals court to reject requests by Polanski's victim, Samantha Geimer, to have the case heard in another county and unseal recent testimony by a former prosecutor.

Prosecutors argue that granting her request for dismissal would "fundamentally alter the way in which crimes are prosecuted." The filing argues that if victims were parties to criminal cases, cases could be dropped either through intimidation, coercion or public pressure.

Geimer petitioned the appeals court to dismiss the case and make the other rulings in a March petition. That filing argued a 2008 constitutional amendment, dubbed Marsy's Law, gives victims more input into criminal cases. Geimer's attorney, Lawrence Silver, has argued twice before that the amendment meant his client's request for dismissal should be considered....

Geimer's filing is a separate appeal from one being pursued by Polanski's attorneys that seeks the appointment of a special counsel to investigate alleged judicial misconduct in the case. The court has not yet ruled on Polanski's appeal.

California voters in November 2008 approved a measure that wrote specific victims' rights into the state constitution, including giving them more notice about criminal proceedings. Geimer has repeatedly sought to have the case dismissed, arguing that renewed interest of the case and media coverage has led to her being repeatedly victimized.

I am troubled, but not at all surprised, that California state prosecutors are aggressively seeking to limit a crime victims' rights when those rights do not serve their interests. Prosecutors are often eager to promote the rights of crime victims when it serves their parochial interests in a particular criminal case, but then are also often likely to disregard or even seek to dismiss the rights of crime victims when it undermines their interests in a particular case.

In light of the official start of National Crime Victims’ Rights Week, I wonder if any officials who work for the federal Office for Victims of Crime-- whose motto is "Putting Victims First" -- have considered filling amicus briefs in support of Samantha Geimer in the Polanski case.

Tuesday, April 06, 2010

The latest "grand" development in the debate over child porn restitution "settlements"

This new article from the Minneapolis Star Tribune, which is headlined "Possessor of child porn to pay $1,000 in restitution," provides the latest legal update on a case concerning debates over restitution awards in child porn cases." Here are the details:

Across the United States, some purveyors of child pornography have been ordered to pay millions in restitution to their victims. Others, not a dime. On Monday in federal court in St. Paul, Brandon Anthony Buchanan -- penniless, without assets and serving more than seven years in prison -- agreed to pay $1,000 restitution for possessing images of a victim identified as "Amy." The amount was agreed to by prosecutors, the defense attorney, the judge and Amy's lawyer.

It is the principle -- not the amount -- that was important in Buchanan's case, said James Marsh, Amy's attorney. Buchanan's case, one of more than 400 in which Marsh has asked for restitution around the country, is a sign that more courts accept the idea that possessing even a single child porn photo does measurable harm to victims. "We applaud the judge for what he's done," Marsh said Monday.

The issue of restitution for child porn victims -- and deciding who pays and how much -- came to the forefront in Minnesota three months ago when U.S. District Judge Patrick Schiltz demanded to know why restitution wasn't being sought in Buchanan's case. Buchanan had pleaded guilty in May 2009 to possessing child pornography, including images of Amy, considered one of the most widely circulated sets of child porn in the country. As he does whenever Amy's pictures are recovered, Marsh submitted a letter in Buchanan's case requesting $3.4 million in restitution.

Marsh said he has won restitution settlements ranging from $5,000 to $150,000 in about a third of the cases. A few courts have ordered millions. Some have ordered nothing....

Defense attorneys have argued that ordering restitution from everyone who possesses child pornography is better left to civil courts, rather than the criminal system. Others say that while the possessor of child porn almost certainly causes harm to its victims, determining the weight of that harm -- among potentially millions of offenders -- is nearly impossible...

Schiltz dived into the center of the debate when he issued an order Jan. 4 asking why restitution was not being sought in Buchanan's case. Schiltz said that Congress has clearly intended that restitution be considered for all crime victims -- including child porn victims. Yet, in Buchanan's case, the U.S. attorney's office and Buchanan's defense attorney agreed that no restitution would be paid.

The prosecutor replied that Amy was, indeed, entitled to restitution. On Monday, all sides agreed that $1,000 was appropriate. Officials with the U.S. attorney's office declined to comment further.

Marsh said that $1,000 -- to be paid to the U.S. Clerk of Court -- is the minimum amount he has agreed to in cases where the offender is destitute. "In a world of unlimited possible defendants with limited resources, defendants like Buchanan just aren't of interest to us," he said.

It is telling (and troublesome?) that this article describes the criminal punishment imposed in this case as a "restitution settlement" given that a resolution was reached here once "all sides agreed that $1,000 was appropriate." Nevertheless, this case formally involved a US District Judge ordering a criminal defendant to pay restitution as part of his (required) punishment for his criminal offense. Still, functionally, this process does not seem like classic and traditional criminal law. Whether that functional reality is a virtue or a vice is a terrifically difficult policy question that will surely continue to rage on.

Monday, March 15, 2010

Any pre-game predictions or hopes for today's federal sentencing of Erin Andrews' stalker?

As detailed in this new AP article, which is headlined "ESPN's Erin Andrews' stalker to get sentence in LA," a high-profile federal sentencing involving a high-profile victim is scheduled for this afternoon. Here are the basics:

The man convicted of stalking ESPN reporter Erin Andrews and shooting nude videos of her through a hotel room peephole is facing sentencing in a Los Angeles courtroom.

Michael Barrett, a 48-year-old Chicago-area insurance executive, has pleaded guilty to interstate stalking and agreed to a 27-month prison sentence. Barrett is suspected of renting hotel rooms adjacent to Andrews in three cities in 2008, including Milwaukee.

Andrews is expected to address the court and talk to reporters after the Monday hearing. Her attorney has said she did not agree to the sentence outlined in the plea bargain, and a sentencing memo filed last month noted that she wants Barrett to pay her about $335,000 in restitution.

As I have noted in prior posts here and here, both the recommended prison sentence and the requested restitution amount are not without controversy. My gut tells me that Barrett will end up getting slightly more than 27-months as a prison sentence, but will also be required to pay less than Andrews seeks in restitution. But that's just a guess based on no special knowledge or insights (and also based on the assumption that Andrews specifically urges a longer prison sentence in court today).

More fundamentally, this case seems like a perfect setting for some creative, shaming-type sanctions in addition to the traditional prison term. Requiring Barrett, say, to post nude videos of himself on to the internet would have somewhat of an "eye-for-an-eye" kind of appeal, but I fear someone like Barrett might enjoy such a punishment too much. Or, assuming Barrett is a sports fan, how about a lifetime ban on watching ESPN's Sportscenter or on watching the NCAA baskeball tournament would really put a hurt on him. Or maybe Barrett should be required to vote repeatedly for Andrews to help her win on this season's Dancing with the Stars.

UPDATE:This AP report on this afternoon's Barrett sentencing suggests my prediction of the sentence was spot-on:

An Illinois insurance executive who secretly shot nude videos of ESPN reporter Erin Andrews was sentenced Monday to 2 1/2 years in prison before giving a tearful apology that was harshly rebuked by his victim....

Barrett, who has until May 3 to surrender, was ordered to have supervised probation for three years after his release, during which he will be prohibited from contacting Andrews, her family or friends.

He will not be allowed to stay in a hotel without approval of a probation officer and if he accepts employment somewhere, Andrews will be notified. Barrett was also ordered to pay $5,000 in fines and $7,366 in restitution, but the judge said further restitution may be imposed to compensate ESPN.